The U.S. Department of Labor's Wage and Hour Division has issued two Opinion Letters (FLSA 2026-9 and FLSA 2026-10), clarifying whether a non-exempt hybrid or remote workers is entitled to compensation for commute time and for work before and during work-day commutes.

Non-Compensable Time and Regular Commutes

Employees covered by the Fair Labor Standards Act (FLSA) need not be paid for certain time during an employee's workday such as:

• bona fide meal periods;
• periods during which an employee is completely relieved from duty;
• ordinary home-to-work commute.

An employee’s ordinary home-to-work commutes are not considered work-time and thus are not compensable. This rule applies whether the employee works at a fixed location or at different job sites. Consistent with the general rule, travel between job sites or travel from a primary fixed work location to a customer location are examples of compensable travel time.

Under the new guidance, the Department of Labor concludes that in the instance of remote work from an employee’s home, employees need not be paid for ordinary commute time even when it occurs after the employee has already started working where it is part of a normal commute that primarily benefits the employee rather than the employer.

When a Mid-Day Commute Remains Non-Compensable

The Department of Labor considered three scenarios involving employees who divide their workday between home and another worksite. In each instance, the commute remained non-compensable because the employee, not the employer, benefited from the arrangement.

Examples include:

• an employee who begins work from home to avoid rush-hour traffic before commuting to the office;
• an employee who voluntarily performs work at home before commuting rather than arriving early at the office; and
• an employee permitted to leave work to catch the last bus home before completing remaining work remotely.

According to the Department of Labor, these arrangements simply provide employees with scheduling flexibility and therefore do not transform an ordinary commute into compensable worktime.

Identifying Compensable Preliminary Work and Commute Time

A second Department of Labor opinion letter addresses a situation in which the employee was engaged in various tasks at the start of each day, only some of which were compensable. The employee, a field service engineer, received customer assignments at home each morning, called customers to schedule service appointments, coordinated work with other technicians, and then drove directly to the first customer location.

The DOL determined that receiving assignments is generally not compensable. Simply receiving electronic pages or assignments before leaving home is considered incidental to using an employer-provided vehicle for commuting and generally is not compensable under the Employee Commuting Flexibility Act (ECFA). In short, the ECFA provides that the use of an employer’s vehicle before or after the workday does not transform the commute into compensable time.

Additionally, the DOL concluded that scheduling customer appointments and coordinating work with other technicians is different than receiving assignments. Based upon the facts presented, the Department of Labor determined these activities were integral and indispensable to the employee's principal job duties and therefore constitute compensable work, whether performed at home or during the commute.

Finally, the commute itself may become compensable. The Department of Labor concluded that when the employer requires the employee to spend much of the hour immediately before or during the commute performing principal job duties, the travel itself is no longer an "ordinary commute." Instead, because the employer dictates both the timing of the travel and the employee's work obligations surrounding the travel, the commute primarily benefits the employer and becomes compensable.

Employer Considerations

Permitting non-exempt employees flexibility to begin or end work from home generally will not, standing alone, convert commuting time into hours worked. Conversely, requiring employees to perform substantial principal work activities immediately before or during travel may trigger compensation obligations for both the work performed and, in some circumstances, the travel itself.

Employers should consider reviewing:

• hybrid work and telework policies;
• policies and timekeeping procedures for employees performing work before leaving home or working while commuting; and
• expectations regarding customer communications before or during travel.

The Department of Labor opinion letters addressed in this summary relate to non-exempt employees. The opinions do not apply to employees who are exempt from both the FLSA's minimum wage and overtime requirements, including properly classified executive, administrative, and professional employees.

‍

If you have a question about these FLSA letters or other employment questions, contact Kevin P. Doyle at kdoyle@praywalker.com.

‍